Field-Escandon v. Demann

• Decision Date: 30 August 1988
• Docket Number: P,FIELD-ESCANDO
• Citation: 204 Cal.App.3d 228,251 Cal.Rptr. 49
• Court: California Court of Appeals Court of Appeals
• Parties: Raullaintiff and Appellant, v. Frederick DeMANN and Andrea Lynn DeMann, Defendants and Respondents. Civ. B022529.

Page 49

251 Cal.Rptr. 49

204 Cal.App.3d 228

Raul FIELD-ESCANDON, Plaintiff and Appellant, v. Frederick DeMANN and Andrea Lynn DeMann, Defendants and Respondents.

Civ. B022529.

Court of Appeal, Second District, Division 3, California.

Aug. 30, 1988.

As Modified Sept. 27 and Sept. 29, 1988.

Review Denied Nov. 22, 1988.

Miguel F. Garcia, Los Angeles, Ralph Manuel Segura, for plaintiff and appellant

Raul Field-Escandon, in pro. per.

Caras, Evangelatos & Alberstone, Dale Alberstone, Los Angeles, for defendants and respondents.

ARABIAN, Associate Justice.

INTRODUCTION

This appeal concerns a dispute between adjacent landowners over a sewer line which has been in existence for more than 25 years. Raul Field-Escandon, plaintiff and cross-defendant, (appellant) appeals from the judgment in favor of defendants and cross-complainants Frederick DeMann and Andre Lynn DeMann (the DeManns or respondents) on his complaint for trespass and their cross-complaint for declaratory relief and establishment of an easement across appellant's property. Upon the DeManns' motion for summary judgment, the trial court ruled that appellant's trespass action was barred by the statute of limitations. After trial on the cross-complaint, the trial court declared that the DeManns had a prescriptive easement for the sewer line crossing appellant's property and permanently enjoined appellant from interfering with the sewer line. Appellant contends that the sewer line is a continuing, rather than a permanent, trespass and therefore the statute of limitations has not expired. He also contends that an unrecorded sewer permit did not constitute constructive notice of the adverse use upon which the finding of a prescriptive easement was based.

We find that the trespass was permanent and the statute of limitations barred appellant's cause of action. Although we agree with appellant that the unrecorded permit did not provide sufficient notice of adverse use, we hold that he is properly enjoined from interfering with the DeManns' continued use of the sewer line. Affirmed.

STATEMENT OF FACTS

On March 6, 1959, the office of the City Engineer of Los Angeles, California, issued a sewer permit approving the construction of a sewer line from the DeManns' property (then owned by the Meyers) to connect to a sewer main line on Reseda Boulevard, which fronts appellant's property. The sewer line, as shown on the WYE map, an official record in the City Engineer's office, runs across appellant's property from about two to five feet south of the northerly boundary of his lot. It is 65 feet long and at a depth of eight feet.

The DeManns purchased their property improved with a single family residence and the sewer pipe in 1973. Appellant purchased the adjacent property, an empty lot, at a tax sale on or about March 1, 1982. Appellant planned to build a home on the property and drew plans for that purpose. He discovered the existence of the sewer line underneath his property while he was processing his building permits. As a title search did not reveal an easement in favor of the DeManns, appellant filed an action seeking removal of the sewer line. The DeManns filed a cross-complaint for declaratory relief and injunctive relief seeking to establish that they had an easement under appellant's property for their sewer line. The DeManns moved for summary judgment on the ground that appellant's causes of action were barred by the three year statute of limitations. The trial court granted the motion, without mention of an award of costs. The notice of ruling, prepared by the DeManns' counsel, stated, "The Court granted the Motion and awarded costs of suit to Defendants," and provided for an award of $2,575.49.

The action went to trial on the DeManns' cross-complaint and supplemental complaint. The evidence established the following facts:

Appellant is a civil engineer registered in California. He did not conduct an investigation After trial on the cross-complaint, the trial court found the existence of a prescriptive easement and issued an injunction prohibiting appellant from removing the pipe.

                of the property before his successful bid at a tax sale for $3,900.00.  Appellant wishes to build a retaining wall near the boundary line between his and respondents' properties.  It was the opinion of a licensed contractor, experienced in building retaining walls, that the retaining wall could be built around the sewer by putting "a sleeve around it to leave room for the pipe to expand and contract."   The pipe is the only sewer line servicing respondents' house and without it they would not be able to use their plumbing facilities
                

ISSUES

The primary issues of this appeal are:

1. For the purpose of determining when the statute of limitation began to run on appellant's trespass action, was the sewer pipe a permanent or continuous trespass?

2. Did the unrecorded sewer permit provide constructive notice of a prescriptive easement to maintain the sewer pipe?

3. Does application of the doctrine of balancing the hardships result in an easement for continued use of the sewer line?

4. Was the award of costs to respondent proper?

DISCUSSION

1. For the purpose of applying the statute of limitations, the sewer pipe is a permanent trespass.

The statute of limitations for trespass and injunctive relief is three years. (Code Civ.Proc., §§ 335, 338, subd. (2).) Appellant's complaint for trespass and injunctive relief to compel removal of the sewer pipe was filed in 1984, which was 25 years after the pipe was installed on appellant's property.

When a trespass is of a permanent nature, the cause of action accrues when the trespass is first committed. (Castelletto v. Bendon (1961) 193 Cal.App.2d 64, 13 Cal.Rptr. 907.) "Where the injury or trespass is of a permanent nature, all damages, past and prospective, are recoverable in one action, and the entire cause of action accrues when the injury is suffered or the trespass committed." (Rankin v. DeBare (1928) 205 Cal. 639, 641, 271 P. 1050.)

Appellant contends that because the trespass may be discontinued at any time, it is considered continuing. Appellant cites Kafka v. Bozio (1923) 191 Cal. 746, 218 P. 753, in which the plaintiff filed an action to enjoin a nuisance where defendant's building leaned over the property line above plaintiff's lot. The court said, " 'Where continuing or recurring injury results from a wrongful act or from a condition wrongfully created and maintained, such as a continuing nuisance or trespass, there is not only a cause of action for the original wrong arising when the wrong is committed, but separate and successive causes of actions, for the consequential damages arise as and when such damages are from time to time sustained; and therefore so long as the cause of the injury exists and the damages continue to occur, plaintiff is not barred of a recovery for such damages as have accrued within the statutory period beyond the action, although a cause of action based solely on the original wrong may be barred.' ... 'In all cases of doubt respecting the permanency of the injury, courts are inclined to favor the right to bring successive actions. Otherwise the effect would be to give the defendant, because of his wrongful act, the right to continue the wrong; a right equivalent to an easement. A right to land cannot thus be acquired.' " (Id., at pp. 751, 752, 218 P. 753.)

However, the courts have held that the encroachment of buildings ( Castelletto v. Bendon, supra, 193 Cal.App.2d 64, 13 Cal.Rptr. 907; Troeger v. Fink (1958) 166 Cal.App.2d 22, 332 P.2d 779), walls, foundations, pipes and vents erected on another's property (Tracy v. Ferrera (1956) 144 Cal.App.2d 827, 301 P.2d 905), and railroad tracks (Williams v. Southern Pacific R.R. Co. (1907) 150 Cal. 624, 89 P. 599) are permanent in nature and a cause of The evidence submitted on the motion for summary judgment established that the sewer pipe was intended to be a permanent structure for sewage disposal from the DeManns' house to the city sewer drain. The Building Department recommended to the Meyers, the DeManns' predecessor in interest, that they replace their problematic septic tank and cesspool with a permanent sewer across appellant's property to connect with the city sewer drain on Reseda Boulevard. The Meyers' believed they were lawfully allowed to pass the line across this adjoining property. Construction of the system required excavation to a depth of at least eight feet across appellant's lot. The excavation was filled with tightly compacted fill.

action for trespass would have accrued as of the date of completion of construction.

This sewer line is similar to other structures which the courts have determined are permanent for the purpose of the running of the three year statute of limitation for trespass. In Polin v. Chung Cho (1970) 8 Cal.App.3d 673, 87 Cal.Rptr. 591, the court stated, "with respect to buildings or railroads tortiously placed on a plaintiff's land, California cases have not permitted the plaintiff to consider the trespass continuing, but have required the plaintiff to consider the trespass permanent as of the date of completion of construction and thus have held plaintiff's cause of action barred if not brought within three years of that date. [Citations omitted.]" ( Id., at p. 677-678, 87 Cal.Rptr. 591.)

The salient feature of a continuing trespass or nuisance is that its impact may vary over time. The sewer line is not a continuing or recurring trespass or nuisance, which repeatedly disturbs the property, as in the case of the nuisance caused by the operation of an airport as in Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, 869-870, 218 Cal.Rptr. 293, 705 P.2d 866, or by the operation of a cotton gin (Kornoff v. Kingsbury Cotton Oil Co. (1955) 45 Cal.2d 265, 288 P.2d 507) or the operation of a slant oil drill which removed minerals from the plaintiff's adjacent property (Shell...